PLJ 2009 SC
1146
[Shariat
Appellate Jurisdiction]
Present:
Justice M. Javed Buttar, Chairman, Zia Pervez, Muhammad Farrukh Mahmud, Dr.
Allama Khalid Mahmud &
Dr. Rashid
Ahmed Jullundari, JJ.
Haji
BAKHTAWAR SAID MUHAMMAD--Petitioner
versus
Mst.
DUR-E-SHAHWAR BEGUM etc.--Respondents
Crl. Shariat
Petition No. 2 of 2008, decided 31.3.2009.
(On appeal
from the judgment/order dated 25.1.2008 passed by the Federal Shariat Court, Islamabad,
in Criminal Revision No. 8/I of 2004).
Offence of
Qazf (Enforcement of Hudood) Ordinance, 1979 (VIII of 1979)--
----Ss. 6, 7
& 14--Denial the paternity of her three children--Charge of adultery being
bad character--When a husband accuses before a Court his wife--"Here,
there are no husband and wife--Such relationship had admittedly come to an end
when husband divorced his wife and executed divorce deed--No question of
Section 14 of the Qazf Ordinance being attracted to the facts disclosed by the
evidence adduced by the petitioner during preliminary inquiry under Section
202, Cr.P.C.--Petitioner and the respondent were just a man and a woman and not
husband and wife when the petitioner in his written statements and also before his
elder brother and, allegedly, also before a punchayat in his own house made
imputation of zina concerning the respondent and explicity alleged that all of
her three children were illegitimate children and, therefore, the action of the
petitioner clearly attracted the provisions of Ss. 6 & 7 of the Qazf
Ordinance--Leave refused. [P. 1151] A
Sh. Zamir
Hussain, Sr. ASC for Petitioner.
Mr. Zulfiqar
Khalid Malooka, ASC for Respondent No. 1.
Mian Asif
Mumtaz, D.P.G, Punjab for State.
Date of
hearing: 31.3.2009.
Order
Dr. Allama
Khalid Mehmud, J.--Petitioner seeks leave to appeal against judgment dated
25.01.2008 whereby the learned Federal
Shariat Court accepted (Crl. Revision No.
8/I/2004) filed by Respondent Mst. Dur-e-Shahwar Begum whereby the impugned
order was set aside and the case was remanded to the learned Additional
Sessions Judge, Pakpattan with the direction to frame the charge under Sections
6 & 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, and
proceed with the case in accordance with law.
2. The facts of the case are that respondent
filed a suit on 17.7.1983 against the petitioner for recovery of dower articles
(or money in lieu thereof) in the Court of Civil Judge, Pakpattan. She also
filed another suit on the same date in the same Court for recovery of
maintenance for herself and her three children. The petitioner filed written
statements in both suits on 16.1.1984. In the both written statements the
petitioner stated that he was neither the father of children of the respondent
as she was not of a good character and all her three children were illegitimate
due the result of adultery. The petitioner did not indicate in any of his
statements when and how he came to know this fact that none of his three issues
were not from him. If he had known that the first of these three were not his
children, how he maintained the other two be borne at his home. In this
position these are three independent allegations, he leveled against the
respondent in his written statement filed in Court which are next only
repetition but contain additional allegations of adultery raised for the first
time after decision. This response raised another issue and the suits remained
pending without any progress having been made in them for the last twenty-three
(23) years.
3. On 9.5.1984 the respondent filed a complaint
in the Court of Additional Sessions Judge, Pakpattan under Section 7 of the
Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, (hereinafter referred to
as "the Qazf Ordinance"), in which she stated (per para-5) that after
receiving the divorce deed she along with a number of notables, whose names she
had given in the complaint which includes the name of Pir Muhammad Chishti.
They went to Pakpattan to meet the petitioner for effecting a settlement but
the petitioner spurned these reconciliatory gestures of the Respondent and
accused her of adultery before the assemble notables. He refused to acknowledge
the paternity of the three children and alleged that they were the illegitimate
children of the Respondent. At this time the Respondent was not his wife and he
had already divorced her; so at this time he committed the offence of Qazf if
the complaint of the Respondent is given a due consideration. He answered this
in response to the suggestion of a compromise that he was not prepared for
that. So this was not a repetition of his first allegation made to her when she
was his wife.
4. Sheikh Zamir Hussain, learned Sr. ASC
appeared on behalf of petitioner and contended strenuously that the petitioner
and the Respondent No. 1 were married on 23.07.1972. The marriage,
unfortunately, did not last long and allegedly the petitioner orally divorced
the Respondent No. 1 on 24.04.1983. However, on 25.4.1983 a written divorced
deed was issued to the respondent which became effective on 3.08.1983. He
further stated that after the receipt of the notice she along with some
respectable persons approached the petitioner for reconciliation. The
petitioner allegedly made the same allegations before the witnesses. Thereafter
she along with the witnesses went to the elder brother of the petitioner who
called for the petitioner and the petitioner allegedly revised the assertions
made in the notice.
5. According to the learned Counsel for
Respondent No. 1, that the petitioner had first committed the offence of Qazf
before the respectable of the parties when they had gone to the petitioner to
effect reconciliation after the receipt of divorce deed by the petitioner and
the petitioner is alleged to have again committed the same offence when he
filed the three written statements in the two family suits in which he denied
the paternity of the three children of the petitioner alleging that they were
not from him but from some one else with whom the Respondent had illicit
relations. He committed the same offence in more explained then the first one.
The Quran
holds that this act of allegation is liable to punishment. The Quran says:
"Those
who accuse a married woman of fornication and produce not four witnesses to support
their allegation, shall be flogged eighty lashes......S-Al-noor:3."
The wisdom
behind this imposition of punishment is that if any one alleges such a heinous
allegation against any woman and does not produce four witnesses and she is
defamed in society if the scandler is not punished and if it is proved that he
committed that act, it is her right that she be given a chance to sue him to
safeguard her modesty. It finds support in Al-Hidaya as follows:
If the
accused (against whom the slander is made) requires the Magistrate to pass
sentence of punishment for slander (Qazf) upon that person, the Magistrate is
bound to order this infliction. Mussalman Law by Charlas Hamilton P. 197
If such
allegation is made to wife this leads to lien by which they are separated but
if this allegation is made against woman who is already divorced it is Qazf an
accusation of fornication against a woman who observes modesty. It suggests
that the woman against whom Qazf is made has right to forgive him.
6. During the course of inquiry under Section
202 Cr.P.C, learned Additional Sessions Judge examined four witnesses,
including petitioner's brother Diwan Ghulam Qutbuddin and Sakhi Muhammad Shah
Chishti and both of them stated that they had gone to the house of petitioner
along with the Respondent and other notable of the area but the petitioner
rejected the reconciliatory gestures of the respondent and the notables in
front of all of them. He accused the respondent of being the immoral character
and habituated to adultery so denied the paternity of her three children. It is
obvious that his remarks of slandering her were in response to the suggestion
of reconciliation and not a repetition of any of his first statement. Learned
Trial Judge, however, refused to frame charge under Section 7 of the Qazf
Ordinance vide impugned Order of 6.12.2003 and held that the inquiry under
Section 202 Cr.P.C. revealed that the petitioner had leveled charge of adultery
being bad character against the respondent during the subsistence of marriage
between them, not after the divorce , and therefore this dispute being between
husband and wife, would not attract the provisions of Section 7 of the Qazf
Ordinance but of Section 14 of the Qazf Ordinance.
7. The relevant documents for the purpose of
determining the validity or otherwise of the impugned order are, firstly, the
deposition of witnesses examined by the learned Additional Sessions Judge
during preliminary inquiry and the plaints in the two family suits filed by the
Respondent Durr-e-Shahwar Begum against the Petitioner for return of dowry and
for maintenance and the written statements filed by the Petitioner (both dated
16.1.1984) in two suits, as well as "an amended written statement dated
6.1.1985" in the dowry suit. We have minutely examined these documents.
When the question of return of dowry arises? It is always after the divorce.
8. According to the Respondent, the Petitioner
had first committed the offence of Qazf before the respectable of the parties
when they had gone to the petitioner to effect reconciliation after the receipt
of divorce deed by the Respondent and the petitioner is alleged to have again
committed the same offence when he filed the three written statements in the
two family suits in which he denied the paternity of the three children of the
Respondent alleging that they were not from him but from someone else with whom
the Respondent had illicit relations.
9. Appearing as PW 1 in the preliminary inquiry,
the Respondent said that the Petitioner had turned her out of the house some
five years prior to giving divorce and she was living separately after
receiving the divorce deed (dated 25.4.1983) from the Petitioner. She then went
to him with the respectable of her family for effecting some reconciliation but
the Petitioner refused to hear them and stated before them that she was a woman
of bad character and her three children were the result of her act of adultery.
She also gave the names of five respectable of her family who had gone with her
to the house of the Petitioner. Diwan Ghulam Qutbuddin, Sajjada Nashin of
dargha of Baba Farid Shakar Gunj, is the real elder brother of the Petitioner.
He deposed that the Petitioner was his younger brother and lived in the
adjoining house and he knew very well that the Respondent had lived with
Petitioner for about 7 or 8 years after marriage and her three children were
from the Petitioner. He further stated that the Respondent once came to him
along with the respectable of the `bradari' and complained that the Petitioner
had divorced her and had also accused her of adultery and denied the paternity
of her children whereupon he (Diwan Ghulam Qutbuddin) sent for the Petitioner
(his younger brother) and tried to persuade him to effect reconciliation but
the Petitioner refused to patch up the dispute and even in his presence leveled
false charge of adultery on the Respondent and declared that her children were
not from his `nutfa' and were illegitimate. PW 3 is the daughter of the
Respondent who was 10 (ten) year old in July 1984 when she was examined. Her
evidence is of very little value for our purposes. PW 4 Sakhi Muhammad Shah is
the `khaloo' of the Respondent and he said that he had acted as `gawah nikah'
at the time of the marriage of the parties which took place 12 years prior to
his examination in Court (he was examined on (22.7.1984), that three
children-----Ayuesha Bakhtiar, Mehrunnisa Bakhtiar and Ali Ahmad-----were born
out of the wedlock, that `five year ago' the Petitioner had turned out the
Respondent and her children out of the house and about `15 months ago' he had
divorced her, that on learning of the divorce a. punchayat, consisting of the
respectable of the `bradri' was constituted, including him, and they along with
the Respondent went to the Petitioner (she gave the names of the persons who
went to the Petitioner) but the Petitioner accused the Respondent before the
punchayat' of immoral character and disowned the paternity of her three
children and said they were her illegitimate children whereupon all of them
straightaway went to Petitioner's elder brother, Diwan Ghulam Qutbuddin, who
sent for the Petitioner who came to his house whereupon Diwan Sahib asked the
Petitioner to behave properly and be reasonable but even before him the
Petitioner made the charge of immorality against the Respondent and again
disowned the paternity of her children.
10. Learned Additional Sessions Judge observes in
the impugned order that the evidence on record revealed that the allegation of
immorality, even though made after the marriage between the parties stood
dissolved due to divorce, were nevertheless in respect of the period when the
marriage between them subsisted and therefore Section 7 of the Qazf Ordinance
was not applicable and hence he did not frame charge against the Petitioner
under Section 7 of the Qazf Ordinance but decided to proceed against him under
Section 14 of the Qazf Ordinance.
11. We have heard the learned ASC for the
petitioner. Respondent No. 1 and the learned Deputy Prosecutor General and
perused the record.
12. We agree with the Federal Shariat Court's finding that the
learned Additional Sessions Judge seriously erred in law in holding that the
preliminary evidence made out a case of Section 14 of the Qazf Ordinance.
Learned Additional Sessions Judge failed to note that Section 14(1) commences
by the words `When a husband accuses before a Court his wife......Here, there
are no husband and wife. Such relationship had admittedly come to an end on
25.4.1983 when the Petitioner divorced the Respondent and executed divorce deed
(the Petitioner concedes in his written statements before the Family Court that
he had divorced the Respondent and had executed divorce deed on 25.4.1983).
There is, therefore, no question of Section 14 of the Qazf Ordinance being attracted
to the facts disclosed by the evidence adduced by the petitioner during
preliminary inquiry under Section 202 Cr.P.C. The Petitioner and Respondent
were just a man and woman------and not husband and wife--------when the
Petitioner in his written statements (three of them) and also before his eider
brother and, allegedly, also before a punchayat in his own house made
imputation of zina concerning the Respondent and explicitly alleged that all of
her three children were illegitimate children and therefore the action of the
Petitioner clearly attracted the provisions of Sections 6 and 7 of the Qazf
Ordinance. The impugned order dated 6.12.2003 is therefore untenable as held by
the learned Federal Shariat Appellate Court in the judgment dated 25.10.2008 impugned
by the petitioner in this petition.
For the
reasons as above, we see no merit in this Petition, which is accordingly
dismissed and leave refused.
(M.S.A.) Leave
refused.
